FOR PUBLICATION
UNITED STATES COURT OF APPEALS
FOR THE NINTH CIRCUIT
UNITED STATES OF AMERICA,
Plaintiff-Appellee, No. 09-30063
v. D.C. No.
DIEGO A. LIGHTFOOT, AKA Jusif 3:04-CR-00098-
Tawfiq, JKS-1
Defendant-Appellant.
OPINION
Appeal from the United States District Court
for the District of Alaska
James K. Singleton, Senior District Judge, Presiding
Argued and Submitted
November 2, 2010—Seattle, Washington
Filed November 30, 2010
Before: Betty B. Fletcher, Ferdinand F. Fernandez, and
Jay S. Bybee, Circuit Judges.
Opinion by Judge Fernandez
19007
UNITED STATES v. LIGHTFOOT 19009
COUNSEL
Meredith A. Ahearn, Hagans, Ahearn & Webb, Anchorage,
Alaska, for the defendant-appellant.
Jo Ann Farrington, Office of the United States Attorney,
Anchorage, Alaska, for the plaintiff-appellee.
OPINION
FERNANDEZ, Circuit Judge:
Diego Lightfoot appeals the district court’s denial of his
motion to modify his sentence. 18 U.S.C. § 3582(c)(2). We
affirm.
19010 UNITED STATES v. LIGHTFOOT
BACKGROUND
Pursuant to a plea agreement signed on November 1, 2004,
Lightfoot was convicted on January 13, 2005, of three
offenses: felon in possession of a firearm and ammunition, 18
U.S.C. § 922(g)(1); possession of a controlled substance —
crack cocaine — with intent to distribute, 21 U.S.C.
§ 841(a)(1), (b)(1)(B); and use of firearm in furtherance of a
drug trafficking crime, 18 U.S.C. § 924(c)(1)(A), (D). Based
on a total offense level of 23 and a criminal history category
of IV, the range under the Sentencing Guidelines
(“Guidelines”) was established at 130 to 147 months. The dis-
trict court sentenced Lightfoot to 130 months imprisonment
and five years of supervised release.
The Guidelines for crack cocaine violations were amended
after Lightfoot was sentenced. Amendment 706 to the Guide-
lines (hereafter “the Amendment”) authorizes reductions for
sentences based on crack cocaine violations that were
imposed before November 1, 2007. See United States v.
Chaney, 581 F.3d 1123, 1125 (9th Cir. 2009); USSG App. C,
amend. 706. The Sentencing Commission promulgated the
Amendment in response to the one hundred to one sentencing
disparity between offenses involving crack cocaine and those
involving powder cocaine. United States v. Leniear, 574 F.3d
668, 672-73 (9th Cir. 2009). The Amendment reduced the dis-
parity by adjusting the base offense levels assigned to various
quantities of crack cocaine downward by two points. USSG
§ 2D1.1. It was declared to be retroactive. Id. § 1B1.10(c).
In light of the Amendment, Lightfoot filed an 18 U.S.C.
§ 3582(c)(2) motion with the district court to reduce his sen-
tence. The government asserted that Lightfoot remained a
danger to the community and urged the district court to use
its discretion to refuse his request.
The court found that Lightfoot was eligible for a sentence
reduction under § 3582(c)(2) because “the guideline range
UNITED STATES v. LIGHTFOOT 19011
applicable to the Defendant has been reduced.” The court rec-
ognized its obligation to weigh the § 3553(a) factors and to
consider the nature and seriousness of the danger to the com-
munity that may be posed as a result of any reduction,1 but did
not see any reason to hold a hearing with Lightfoot present.
It then decided that a reduction was not warranted. This
appeal followed.
JURISDICTION AND STANDARDS OF REVIEW
The district court had jurisdiction pursuant to 18 U.S.C.
§§ 3231, 3582(c)(2). We have jurisdiction pursuant to 28
U.S.C. § 1291 and 18 U.S.C. § 3742(a).
Before we can address the merits of Lightfoot’s contention
that the district court wrongfully decided his § 3582(c)(2)
motion, we must determine whether he waived his right to
appeal that decision in the first place. See United States v.
Vences, 169 F.3d 611, 613 (9th Cir. 1999). We consider de
novo whether, pursuant to a plea agreement, a defendant has
waived his appeal rights. See United States v. Speelman, 431
F.3d 1226, 1229 (9th Cir. 2005).
We review § 3582(c)(2) denials of reduction of sentencing
for abuse of discretion. Chaney, 581 F.3d at 1125. “A district
court may abuse its discretion if it does not apply the correct
law or if it rests its decision on a clearly erroneous finding of
material fact.” Id. (internal quotation marks omitted).
DISCUSSION
As already noted, we must first decide whether we should
hear this appeal at all, and only then will we decide its merits.
1
See USSG § 1B1.10 comment. (n. 1(B)).
19012 UNITED STATES v. LIGHTFOOT
I. Waiver of Appeal Rights
In the plea agreement entered into on November 1, 2004,
Lightfoot waived a number of rights. He agreed to waive “his
right to appeal his conviction.” That is not in question here.
However, he also agreed that:
as consideration for the government’s commitments
under this plea agreement, and if the court accepts
this plea agreement and imposes a sentence no
greater than the maximum statutory penalties avail-
able for the offense of conviction, including any for-
feiture under this plea agreement, he will knowingly
and voluntarily waive his right, contained in 18
U.S.C. § 3742, to appeal the sentence — including
any forfeiture or conditions of supervised release
imposed. Furthermore, the defendant also knowingly
and voluntarily agrees to waive his right to collater-
ally attack his conviction and/or sentence — includ-
ing any forfeiture, whether civil or criminal,
administrative or judicial or conditions of supervised
release imposed.
He reiterated that when he further agreed:
I also knowingly and voluntarily agree to waive my
right under 18 U.S.C. § 3742 to appeal any aspect of
the sentence imposed in this case, if the court accepts
this agreement and imposes a sentence no greater
than the statutory maximums available for this
offense. Furthermore, I knowingly and voluntarily
waive my right to collaterally attack any aspect of
my conviction or sentence, except for a challenge
based upon ineffective assistance of counsel . . .
which affected either my guilty plea or the sentence
imposed by the court.
There is no claim before us that the waiver was ineffective as
to his initial sentence. What is disputed, however, is whether
UNITED STATES v. LIGHTFOOT 19013
it encompasses the present modification proceeding. As we
will explain, it does not.
No doubt plea agreements are contractual in nature,2 and,
as is typical in contract cases, if the terms are clear and unam-
biguous, we will not look further.3 If they are not that clear,
we look further,4 and if they still remain ambiguous, we con-
strue the ambiguity against the government.5
[1] When the provision at hand was drafted and agreed to,
we think it was clear enough regarding the proceeding then in
progress. Lightfoot’s sentence was to become final at the time
and was not to be directly or collaterally attacked.6 That, how-
ever, does not answer the issue before us because Lightfoot
has not sought to appeal or collaterally attack that sentence;
he seeks only to challenge the district court’s failure to
impose a different sentence in light of the change in the
Guidelines.
[2] No doubt a decision pursuant to § 3582(c)(2) is a dis-
cretionary decision separate from the original sentencing7 and
presents the district court with different considerations, but
that does not quite answer the question at hand. Nevertheless,
it is apparent that the parties never even contemplated that
2
United States v. Franklin, 603 F.3d 652, 657 (9th Cir. 2010).
3
United States v. Clark, 218 F.3d 1092, 1095 (9th Cir. 2000).
4
See Franklin, 603 F.3d at 657; Clark, 218 F.3d at 1095.
5
See United States v. Joyce, 357 F.3d 921, 923 (9th Cir. 2004); United
States v. Anglin, 215 F.3d 1064, 1067 (9th Cir. 2000).
6
Plea agreements, of course, are not always so clear. Compare Joyce,
357 F.3d at 924 (waiver of right to appeal sentence includes supervised
release), with United States v. Pruitt, 32 F.3d 431, 433 (9th Cir. 1994)
(waiver of appeal rights does not waive collateral review rights).
7
See United States v. Colson, 573 F.3d 915, 916 (9th Cir. 2009); see
also United States v. Woods, 581 F.3d 531, 536 (7th Cir. 2009) (district
court had jurisdiction despite a collateral attack waiver); Leniear, 574 F.3d
at 672 (district court had jurisdiction despite a sentence appeal waiver).
19014 UNITED STATES v. LIGHTFOOT
there might be one of those relatively rare retroactive amend-
ments to the Guidelines,8 which would bring a new consider-
ation before the district court; one that could present a new
array of facts and call for a new exercise of discretion.9 Had
they done so, we have little doubt that waiver of an appeal of
a § 3582(c)(2) decision would have been either expressly
included or expressly excluded.
[3] In other words, we agree with the decision of the Fifth
Circuit Court of Appeals that a similarly broad waiver at the
time of a plea agreement did not waive the right to appeal a
§ 3582(c)(2) decision. See United States v. Cooley, 590 F.3d
293, 296-97 (5th Cir. 2009). As the court opined:
[Section] 3582(c)(2) motions “do not contest” but
rather “bring to the court’s attention changes in the
guidelines that allow for a sentence reduction.”
Indeed “the defendants could not contest the district
court’s original sentence of imprisonment through
§ 3582(c)(2) proceedings because § 3582(c)(2) pro-
vides no avenue through which to attack the original
sentence.”
Id. at 297 (footnote references omitted). The court continued,
“a motion for sentence modification under 18 U.S.C.
§ 3582(c)(2) is not properly considered an ‘appeal’ or ‘collat-
eral proceeding’ under the terms of a general waiver of appeal
. . . .” Id. Certainly, it can reasonably be argued that the plea
agreement at hand indicated that Lightfoot was waiving the
right to appeal “any aspect of the sentence imposed in this
case” and this later proceeding is an aspect of what his sen-
8
See United States v. Rudolph, 190 F.3d 720, 724 (6th Cir. 1999). A
comparison of the amendments listed in USSG § 1B1.10(c) and the total
amendments adopted through November 1, 2008, indicates that of 725
adopted amendments only twenty-seven had been made retroactive — that
is a mere 3.72 percent.
9
See Colson, 573 F.3d at 916.
UNITED STATES v. LIGHTFOOT 19015
tence is now, but, again, we are left with an ambiguity regard-
ing whether the agreement provision simply refers to the
sentence to be imposed in 2005, or also refers to a possible
change in that sentence at some later date — a change that
would not be possible but for § 3582(c)(2). Thus, that phrase-
ology in the agreement does not change our conclusion, and
we agree with Lightfoot that we should hear his appeal.
II. The Merits
[4] The question that remains is whether the district court
abused its discretion when it declined to alter Lightfoot’s sen-
tence. Of course, full reconsideration and alteration of the
original sentence was not the purpose of the § 3582(c)(2) pro-
ceeding.10 The purpose was simply to consider whether Light-
foot should have the benefit of the reduced guideline range.
As we have said:
By its plain terms, § 3582(c)(2) requires that the dis-
trict court: (1) determine whether the defendant was
“sentenced to a term of imprisonment based on a
sentencing range that has subsequently been lowered
by the Sentencing Commission pursuant to 28
U.S.C. 994(o)”; (2) consider[ ] the factors set forth
in section 3553(a) to the extent that they are applica-
ble”; and (3) determine whether “a reduction is con-
sistent with applicable policy statements issued by
the Sentencing Commission.” 18 U.S.C. § 3552
(c)(2). There is simply no other requirement to be
found in the plain text of the statute.
10
See United States v. Hicks, 472 F.3d 1167, 1169 (9th Cir. 2007) (gen-
erally district courts cannot alter sentences); id. at 1171 (§ 3582(c)(2) pro-
ceedings are not “full re-sentencings”); see also Woods, 581 F.3d at 538
(district courts in § 3582(c)(2) proceedings “cannot make findings incon-
sistent with that of the original sentencing court”).
19016 UNITED STATES v. LIGHTFOOT
Chaney, 581 F.3d at 1126. However, in making its determina-
tion, the court “shall consider the nature and seriousness of
the danger to any person or the community that may be posed
by a reduction in the defendant’s term of imprisonment”11 and
“may consider post-sentencing conduct of the defendant that
occurred after imposition of the original term of imprison-
ment.”12 The district court did exactly that, and declared that
Lightfoot’s behavior “has done nothing to alleviate the
Court’s concern” that he is a danger to the community, that
the original sentence “was appropriate,” and that it remains
so. Here is what the court confronted: a record including inso-
lence to custodial staff, fighting, threatening a staff member,
threatening bodily harm, and refusing to work. For the most
part, Lightfoot did not deny this behavior, but sought to shrug
it off or excuse it; he suggested that “[h]is prison behavior is
predictable.” Well, so the district court believed, but that
hardly boded well for the public were Lightfoot to be released
early.
[5] We are unable to say that the district court abused its
discretion.13
CONCLUSION
This appeal is properly before us, despite Lightfoot’s plea
agreement. However, on this record the district court had
every reason to be concerned that Lightfoot’s prior behavior
would become renascent upon his release from prison, and the
court did not abuse its discretion when it refused to expedite
11
USSG § 1B1.10, comment. 1(B)(ii).
12
USSG § 1B1.10, comment. 1(B)(iii).
13
Lightfoot complains that the district court went forward without
allowing him to put in a personal appearance. But the law does not require
the district court to allow that. See Fed. R. Crim. P. 43(b)(4); see also Dil-
lon v. United States, ___ U.S. ___, ___, 130 S. Ct. 2683, 2692, 177 L. Ed.
2d 271 (2010). We see no abuse of discretion in the district court’s deci-
sion to proceed without him.
UNITED STATES v. LIGHTFOOT 19017
imposition of Lightfoot upon society by reducing his earlier
sentence.
AFFIRMED.